The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1887-01-27

such intent.
A. The allegation of the intent In this case was
an essential and material allegation, and it was
necessary for the prosecution to prove facts in
order to show beyond doubt what that intent
was
s. Where there is no evidence to warrant the
finding of the jury, this court will override the
judgment.
Judgment reversed.
Jefferson B. Brown and Fred. T. Myers, for
Plaintiff in Error; The Attorney General, for
Defendant in Error.
January Term, A. ID. 1887.
johnson, Daniels s. Co., Appellants, vs.. The
and dismiss-Polk county.
RANEY, j.:
l. A refusal by an appellant to comply with
Supreme Court Rule 81, rs to money deposit
or bond to secure the Clerks costs, is ground
for the dismissal of an appeal which has not been
docketed
g. Dismissal ordered unless the rule shall be
complied with in twelve days
G. a. Hanson, for the Motion.
NJ. P. Dzalynski, ct al, Appellants vs.. The
Bank of jacksonville, Appellee-Motion to al
firm and for damages.
RANEY, j.:
The fact that the appellee claims that the ap-
peal has been taken merely for delay and asks
tor an assessment of damages for frivolous ap-
peal under the statute, (Sec. a. p. $40, McC.'s
Digest) does not entitle him 10 have the case
heard in motion hour upon a motion to affirm
and for damages. The case should be heard,
upon The regular call ofthe docket like any other
standing for hearing on its merits, and
the application for damages be submitted on
such hearing and not by motion.
Motion to affirm and for damages denied with
out prejudice to claim for such damages
hearing on the regular call of the docket.
A. w. Cockrell & Son, for the Motion Spark
man Sparkman, Wall & Turman, Contra.
Ex-parte Herbert Davis-Habeas Corpus.
RANEY, j.:
Where prisoner who has been sentenced to
hard labor in the State Prison obtains upon writ
of error, new trial while he is performing such
labor under the contractor for services of such
convcts, and the contractor or State retains him
in such custody after the mandate ordering the
new trial has been issued, the prisoner WILL upon
habcas corpus, either be remanded TO the jailor
OF the county where his cause is to be tried, or, if
the case be bailable will be released on bail to
appear at the next term of the Circuit Court to
answer the indictment.
Prisoner bailed.
jeff B. Brown for Petitioner; Attorney Gen.
eral, for the State of Florida,
Simon J. Temple, Appellant, VS.. The Florida
IIduu duU Immigration company, ADpcllee-
Motion to strike bill of exceptions.
.RANEY, j.:
l. An order allowing further time for makingup
and signing bill OF exceptions must, under
Rule 81 of the Circuit Court Rules, be entered
in the record or minutes of all the proceedings
4hsg p ssFk The IS ssaas Ss S ksep
and the judge required to sign before the ad-
tournament of the term An entry upon the mo-
ton cooked Is not sufficient
q Where the transcript shows that a formal
order has been made and signed by the Circuit
Judge, but not entered in the minutes, the final
hearing Of the case upon its merits NAV be post
pOned reasonable time to enable the appellant
to have such order entered nunc pro tune in the
minutes and rcinstatcd in the transcript.
Motion to strike the bill Of exceptions granted
without prejudice 10 an application by appellant
for postponement Of hearing under the second
head note.
G. P. & J. c. Cooper, for Motion; J. J. g.. 8.
Y. Finley, Contra.
The Crescent Insurance Company of New
Orleans, Appellant VS.. Louis Baer, Appellee
-Escambia County.
RANEY, j.:
1. A creditor of one member of partnership
can not garnlshee debtor of the partnership
3. An allegation by the creditor of one partner
that the debt due to the partnership was for in
surance of certain furniture destroyed by fire. and
which the partnership ueed solely for the pur-
pose of conducting gaming business and that
the partnership existed for no other than gaming
purposes, though admitted by the debtor of the
partnership does not create an exception to the
above rule or render the firm debtor gar
nishable in behalf of the creditor of one mem
Der of the firm. The other member of the |
partnership not being before the court, neither
his interest nor that of the debtor partner in the
partnership assets can be adjudged nor does the
,t,,tn Ii So
and settling the partnership accounts
g. 1t seems not only that where in an illegal |
venture there have been profits made, an &C
count may be had in equity by one p.rner |
against another who has tnem and is seeking to |
appropriate them; but also that where there has |
been loss in The venture and an adjustment be- |
tween the partners and an obligation has been |
given by the debtor partner to the other that an
action may be maintained on such obligation
judgment reversed.
W. A. Blount, for Appellant J. C. Avery. for
Appellee.
Fl. D. Forbes & Bro, Appellants, Va. Thomas V.
Porter, Appellee-Moion to dismiss onneal |
and strike bill of exceptions.
RANEY, j.:
l. The Identification in an appeal bond of the |
judgment appealed from is sufficient, il /, is Ger
tain, even though il he inartiical
2. No appeal lies from an order refusing to
dissolve an attachment.
3. Where exceptions are taken upon the trial
oil an issue of fact before jury in an attachment
the bill of exceptions may be settled
as in other cases and filed, but no appeal can be
taken from an order refusing TO dissolve the At
tachment until there has been final Judgment for
the plaintiff upon the claim or demand which the
attachment was levied TO secure.
Both motions are denied.
Hampton & Hampton, for the Motion Miller
& Spencer, Contra
Charles s. Adams, Administrator de 6onis non
cum testamento 0nnec0, Appellant, vs. Edwin
Higgins ct al Appellees-Sumter county
Trial by Francis p Fleming, as Referee.
RANEY, j.:
l. The effect OF an amendment nunc Dro tune
of the entry or record of judgment is. az be-
tween the parties thereto and except "a To Ger.
tain third parties, 10 make the Judgment of the
same effect as it the defects, on account of
which II was amended, had never existed.
T. The object and effect of an amendment
'unc pro tune OF judgment is to furnish proper
evidence OF acts properly done by tie court. but
not properly exhibited by its record, and such
evidence is furnished nunc pro tune for the pur.
pose OF supporting those acts which, though the
proper consequence of q judgment, would seem
70 be irregular and void, because there was M
proper evidence OF a Judgment.
.. A sale OF lands Of q deceased person under
IN execution 10 be levied "of the goods and
,hattels, lands and tenements of J. 8. b ss adj
Illustrator of the estate of such deceased nor
ION, Is valid. such execution HAVING haor ;..,,o3 |